ANALYSIS: The evidence is clear: householders already have all the burglar-bashing rights they could wish for, writes Gordon Darroch.

Elsewhere on the JusticeGap, you can read Mark George QC on Chris Grayling HERE.

‘Not only is Grayling indulging in grandstanding of the worst sort but it is also a bit worrying that the new justice secretary doesn’t appear to understand the law.’Mark George QC

Gordon Darroch

Chris Grayling’s ‘batter a burglar’ proposal was one of the big woof moments of the Conservative Party conference. It raised a predictably raucous cheer from the faithful in the conference hall. It triggered ecstatic headlines in the Tory press, with The Sun promising: ‘It’s official: you can batter a burglar’ and the Daily Mail championing homeowners’ hard-won ‘right to use lethal force on burglars’. It was trailed extensively ahead of Grayling’s speech by the party hierarchy right up to the Prime Minister, who recounted how his home in North Kensington had been targeted by a gang who ‘loaded up my Skoda and drove off’.

What better way for an Old Etonian to prove his man-of-the-people credentials than to reveal in a single breath that not only was he a bona fide burglary victim, but he used to drive a Skoda?

Promising people the right to ‘batter burglars’ is an open goal for politicians, especially those on the Tory right. The law of ‘reasonable force’ is frequently held up as an example of the justice system favouring the rights of criminals over those of victims. After all, what householder can be expected to sit and calculate what counts as ‘reasonable’ while trying to defend his family from a knife-wielding maniac who has trespassed on his property? Instead Grayling favoured permitting ‘disproportionate force’, a statement that was widely interpreted as giving householders ‘more legal protection’.

Open and shut case
A snap poll on the Daily Telegraph’s website revealed that 95% of more than 5,000 respondents believed that the law ‘should be wholly on the side of the householder’. Given this overwhelming endorsement, Grayling would seem to have an open and shut case. Yet this is a debate conducted in a vacuum, in almost total ignorance of what the law says and how the courts interpret it. A small number of high-profile cases, gratuitously misinterpreted to fit a pernicious fantasy of a legal system hamstrung by political correctness, has warped the facts beyond all recognition.

Take, to begin with, the Daily Mail’s cherished assertion that householders will be allowed to use lethal force. In fact this ‘right’ was established nearly 50 years ago in a judgment by Lord Parker. ‘Where a forcible and violent felony is attempted upon the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force, and, if necessary, to kill the aggressor’, he ruled in 1963. Since then not just the victim, but anybody supporting them, has been allowed to use lethal force in self-defence.

The Crown Prosecution Service clarified its definition of ‘reasonable force’ in a public statement four years ago, making it clear that ‘if you are in your own home and in fear for yourself or others… the law does not require you to wait to be attacked before using defensive force yourself.’

On any reading it leaves the benefit of the doubt on the side of the householder:

‘You are not expected to make fine judgments over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self-defence.’

So a householder who instinctively grabs a kitchen knife, or a lamp, or a small table, and sets about an intruder with it will still meet the criteria of reasonable force.

But the most compelling evidence in support of the current law is the simple fact that a householder who attacks, and even kills, an intruder is extremely unlikely to be prosecuted and convicted of any crime. Two exceptional cases have dominated the debate, both of which had extenuating circumstances. First came the conviction of Tony Martin, who shot two youths who had broken into his remote farmhouse in the Norfolk fens.

At his trial, forensic evidence showed that the burglar who died was shot as he was running away from the property. Martin was found guilty – not by the police or the judicial establishment, but by a jury of twelve men and women who live in Norfolk. He could hardly have chosen a panel more likely to be sympathetic to his plight, yet still they convicted him. The Court of Appeal later reduced his conviction to manslaughter after hearing new evidence that his paranoid personality disorder had caused him to exaggerate the threat he was under, diminishing his responsibility for the crime.

Then came the case of the Hussain brothers in 2010. Munir Hussain had been confronted in his home by a group of four armed burglars who threatened to kill his family. He chased one of the intruders out into a neighbour’s garden and, together with his brother Tokeer, beat him so badly he was left with a fractured skull and a brain injury. As with Martin, the imminent danger was over by the time victim turned on burglar. Compounding Tokeer’s case was the fact that he hadn’t been in the house at the time of the original break-in, but ran out of his own home a few doors down the road to join in the street attack.

In sentencing them, Judge John Reddihough drew a clear distinction between the action Munir took to defend his property and the retribution the brothers exacted in the street outside. But he went on:

‘If persons were permitted to take the law into their own hands and inflict their own instant and violent punishment on an apprehended offender rather than letting the criminal justice system take its course, then the rule of law and our system of criminal justice, which are hallmarks of a civilised society, would collapse.’

Nevertheless, the Court of Appeal decided Munir had acted under extreme provocation and reduced his sentence from two and a half years in prison to a suspended term of 12 months. Tokeer’s jail sentence was cut from 39 months to two years.

Such cases are the exceptions. It is rare for householders to confront burglars at all – burglars prefer to target properties when the householders are away, as David Cameron can testify, and to flee when disturbed rather than take their chances in a fight. Where confrontations do happen, prosecutions are unusual. The Sun did an exemplary job of demonstrating this point with their choice of victim to celebrate Grayling’s speech. Vincent Cooke stabbed a burglar to death in his home in Greater Manchester. The police investigated Raymond Jacob’s violent demise, as they had a duty to do. Cooke was arrested, but released on bail. He remained free to go about his business so long as he co-operated with the inquiry. After three weeks the police decided not to lay charges against him. Jacob’s accomplice was jailed for 10 years for aggravated burglary. It would be hard to find a case of the law coming down more decisively against the burglar and in favour of the householder.

Even when charges are laid, there is a strong chance that a jury will sympathise with the defendant and acquit. A Lincolnshire farmer, Frederick Hemstock, was cleared in 2002 of deliberately shooting an intruder after he fired his shotgun at two men as they drove away from his estate. In 1996 a 76-year-old man was acquitted of wounding a 21-year-old man who tried to break into his allotment shed in the middle of the night. The pensioner had taken to sleeping in the shed with a shotgun following a string of break-ins, and when he heard a disturbance outside at 2am fired blindly through a hole in the door. The shot hit the would-be intruder in the arm. The burglar went on to sue the shed owner, but the court cut his damages by two-thirds because the injuries were suffered during an attempted break-in.

The law has since been changed to raise the threshold for such claims: since 2003 criminals have only been entitled to compensation if ‘grossly disproportionate’ force has been used against them – exactly the same test that Grayling is putting forward in his victims’ revolution. Another change, in 2009, introduced a new defence of ‘loss of control’ as an alternative to self-defence in murder cases. Pleading self-defence against a murder charge is risky because it is an ‘all or nothing’ defence: there is no option of reducing the charge to manslaughter. Loss of control is a partial defence that will reduce a murder charge to manslaughter. It relies on the killer being able to show that they were in a state of such fear and distress that they went beyond the limits of reasonable behaviour.

Chris Grayling’s ‘batter a burglar’ proposal may make for a nice alliterative headline, but the case history shows it to be a fictional solution to a non-existent problem. Few of us will ever be confronted by a violent burglar in our own home, and those of us who take them on are far more likely, like Vincent Cooke, to be released after a couple of police interviews than charged with murder. Those who are prosecuted or sued in the civil courts have a range of defences at their disposal. But the Justice Secretary, buoyed by the enthusiastic response of the Tory press and their readers, will now embark on an expensive and pointless consultation exercise that will affect a minuscule number of cases, most likely for the worse.

Jon is editor of the Justice Gap. He is a freelance journalist. Jon’s books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council’s journalism award (2015 and 2005) and is shortlisted for this year’s Criminal Justice Alliance’s journalism award